Court name
High Court of eSwatini
Case number
116 of 2009

R v Shongwe (116 of 2009) [2011] SZHC 118 (03 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 118













IN
THE HIGH COURT OF SWAZILAND



HELD
AT MBABANE



CASE
NO. 116/09











In
the matter between:















THE
KING



















VS















WILLIAM
MCELI SHONGWE




CORAM: SEY,
J







FOR
THE CROWN: MR. MATHUNJWA







FOR
THE ACCUSED: MR NDZINISA











JUDGMENT







SEY,
J







[1]
The accused William Mceli Shongwe has been arraigned before me on a
count of Murder. The Amended Indictment which was dated at Mbabane on
the 21
st
day of March, 2011 reads:



"In
that upon or about 20 March 2009 at or near Mbekelweni area, in the
Manzini region, the accused did unlawfully and intentionally kill
Mnotfo Innocent Ngwenya by inflicting injuries on him from which he
died on the 24
th
March,
2009 and did thereby commit the crime of Murder."















[2]
The accused person pleaded not guilty to the indictment. In support
of its case, the Crown led the evidence of four (4) witnesses and at
the close of the Crown's case, the accused gave evidence under oath
and called one witness.



















[3]
It is pertinent to note that certain legal issues are common cause.
In the first place, it is not disputed that the deceased Mnotfo
Innocent Ngwenya is dead. In this regard, the post­mortem report
and the medical report in respect of the deceased were admitted by
consent and marked as Exhibits A and B respectively. The police
pathologist, Dr. Komma Reddy, recorded the following ante-mortem
injuries on Exhibit A:



"1.
Contusions of 2 x 1 cms and 1 x
lA
cms,
present on the right side of the fore head.



2.
Sutured wounds of 5 cms in length and 1 cm length, present on the
right side of the top of the head over the parietal eminence.



3.
A contusion of 4 x 1 cms, present on the middle portion of the left
side of the neck."















[4]
It is also not in contention that the deceased died on the 24
March, 2009 as a result of severe head injuries and it is accepted
that the aforesaid injuries were inflicted by the accused during the
night of 20
th
March, 2009.















[5]
The salient features of the Crown's evidence are to be found in the
testimonies of PW1, PW2 and PW3. PW1 was Lomhlangano Ndlovu, the
deceased's mother. She testified to the effect that, on the eve of
the day the deceased was viciously assaulted by the accused, she had
gone to the accused's homestead to visit his wife. She stated that
the accused came out of his house and sat next to her and then said
"gogo Ndlovu I am going to kill your child." She said the
accused then told her that he had joined the defence force for the
purpose of killing and that was what he was going to do.















[6]
PW1 further testified that the reason for this statement by the
accused was because the deceased owed the accused money for shoes
which he had sold to him. She went on to state that the deceased had
informed her that he was going to pay the accused when he got paid
and that the deceased was supposed to have received his pay on that
Friday when he met his death.















[7]
Jabulani Fakudze testified as PW2 and he told the Court that he and
Bongani Dlamini (PW3) together with the deceased used to sell alcohol
from the accused's home. He said in the process of doing that, the
accused had borrowed E71 from them whilst the accused's daughter and
her boyfriend had also jointly borrowed E70 from them. He said they
had taken a radio from the boyfriend as security and that after 2
months the boyfriend had collected the radio from them and had
informed him and PW3 that they should go to the accused's homestead
to get their money. He said he and PW3 went to the accused's home but
the latter asked them to come with the deceased the following day
since he had an issue to settle with him regarding the money for the
shoes.















[8]
In their various testimonies, PW2 and PW3 said on the following day
they had to wait until the deceased came back from work around 7:30
p. m. before going to the accused's home. According to them there was
nothing sinister in going to the accused's home at night since the
accused ran a sheeben there and they were in the habit of going there
at anytime on previous occasions.















[9]
On their arrival at the accused's home they said they went straight
to DW2's house to demand their money. They said they knocked and she
responded and then told them to go to the other house where her
father was to get the money. According to PW2's testimony, when they
got to the accused's house he asked them who they were and PW3
responded and told him it was Bongani, Jabulani and the deceased. The
accused came out, took a closer look at them and went back inside his
house. He said the accused then came out again carrying a
knob-kerrie. PW2 went on to say that when they saw the accused with
the knob-kerrie, he and PW3 moved away from him and that the deceased
told the accused that they had not come to fight. Thereafter, the
accused assaulted the deceased on the head four or five times with
the knob-kerrie and as the deceased laid helplessly on the ground the
accused insisted that no one but the police should come and rescue
him.















[10]
In answer to questions put to him under cross-examination, PW2 denied
the allegation that as they were knocking they were harassing his
daughters and that was when the accused had come out. Defence counsel
also put it to PW2 that the accused only came back with the
knob-kerrie after he had produced a three-star knife but PW2 denied
this. He also stated that they could not assist the deceased because
they were helpless and they were not carrying anything to defend
themselves with.















[11]
PW3 Bongani Dlamini corroborated the evidence of PW2 on all material
issues. He further testified that on Thursday 19
th
March,
2009, the accused had questioned him about the whereabouts of
deceased and that the accused had threatened to beat up the deceased
and kill him because of the shoes that he had not paid for. PW3 also
testified that the accused had stated that he was a soldier and he
had taken the oath to kill.















[12]
Regarding the assault by the accused on the deceased on Friday 20
th
March, 2009, PW3 testified that the accused struck the deceased with
the knob-kerrie about five times on the side of his head and also
around his neck. He also told the Court that after the deceased was
hit and had fallen to the ground he and PW2 attempted to help the
deceased but the accused had prevented them from helping and had
insisted that he did not want anyone there except the police.















[13]
Under cross-examination, PW3 confirmed that prior to their
arrangement with the accused to sell alcohol during the festive
season, the accused used to sell the traditional brew at his
homestead. He added that during the festive season people wanted
beers. He denied that PW2 was carrying a three star Oka knife on that
fateful day and he added that if there was any knife it could have
been used on the accused after what he had done to the deceased. PW3
also denied defence counsel's allegation that they had planned to
attack the accused at his homestead on that day.



















[14]
PW4 was the investigating officer Detective Constable David Tsabedze
who testified that he had arrested the accused at his home on the
night of 20
th
March 2009 and that he had cautioned the accused in terms of the
Judges' Rules before he was formally charged for the present offence.
He produced and tendered the knob-kerrie without objection from
defence counsel and it was admitted in evidence as Exhibit 1.















[15]
I shall now turn to consider the defence put forward by the accused
person who, as indicated earlier, elected to give evidence on oath.
He testified that in December 2008 he had allowed PW2, PW3 and the
deceased to sell alcohol from his home during the festive season. He
said they continued to sell the alcohol until 1
st
January in the new year 2009 and after that they packed their things
and left his homestead. The accused further testified that he had
never borrowed any money from the young men and denied any knowledge
about the E71 PW2 and PW3 had testified about. He also said he did
not know anything about any shoes that he had sold to the deceased
for
El20.00
and he denied making any threats to PW1 that he would beat up and
kill her son.















[16]
Testifying further, the accused told the Court that on the 20
th
March,
2009, he was asleep around midnight when he heard some noise coming
from the house which is used by his daughters. He said he then came
out and asked who it was that had come to his home to make so much
noise at that time of the night. He went on to say that he saw three
young men moving from his daughters' house and walking towards him
and that he heard the sharp voice of the deceased stating "we
have come here for you." The accused told the court that the
deceased walked until he reached his door and that was when he went
back inside the house to put some clothes on because he was only
wearing his underpants.







[17]
The accused continued with his narration as follows:



"When
I tried to close the door he hit my door and the door



was
damaged After he had hit the door he then



insulted
me using traditional insults. This is when I took my knob-kerrie
which was close to the door and I went outside to him. I was dressed
by then. I saw two other boys standing behind him while he was still
busy fiddling with the door. As he tried to push the door he fell
inside the house on the steps. That is when I hit him with the
knob-kerrie after he fell inside the house. He was fighting with me
and that was when I hit him about three times. I first hit him on his
head and as he tried to stand up I hit him again on the back and when
he was outside he was still fighting me and that was when I hit him
again on his head and he fell down. After that he kept fighting with
me and I hit him again on the head and he fell on the ground and that
was when he could not get up."







[18]
For ease of clarity, I have taken time to reproduce in extensor that
piece of the accused's testimony which is the crux of his defence.
Having fully considered the said evidence, I must state that I find
it peppered with a lot of inconsistencies. In one breath, the accused
said he had taken his knob-kerrie which was close to the door and
that he had gone outside to meet the deceased. In another breath, the
accused stated that the deceased was still busy fiddling with the
door and as he tried to push the door he fell inside the house on the
steps. I ask my self the following questions: Why would the deceased
have been fiddling with the door? And was it necessary for the
deceased to have pushed the door when the accused was already out of
the house? I do not believe the accused's testimony in this respect
and I accordingly reject it.















[19]
Moreover, the accused's assertion that the deceased was fighting with
him cannot reasonably be true. It is in evidence from the accused's
own testimony that the deceased had fallen on the steps and was on
the ground when he first struck him. In my view, it is inconceivable
that the deceased, who was unarmed, was able to rise up and fight
after being struck by the accused with the knob-kerrie. I have had
the opportunity of seeing and touching the said knob-kerrie which was
admitted as Exhibit 1 and it is my considered view that the deceased
could not have withstood even a single blow on the head much more
three to five such blows. In fact, the post-mortem report reflects
that the " left temporal bone, left parietal bone and occipital
bone" in the skull were all fractured.















[20]
Under cross-examination, the accused stated that when PW2, PW3 and
the deceased got to him they did not explain anything to him and that
they just fought with him. He also alleged that PW2 had produced a
knife. To my mind, this is not plausible because had there been such
a knife it would have been used by one of them. After all, the
situation that presented itself on that fateful day was that of a 52
year old man in a stand-off with three young and able-bodied men who
were all in their 20s. In my view, PW3 summed up the situation in a
nutshell when, in answer to a question under cross- examination, he
had responded that if there was any knife it could have been used on
the accused after what he had done to the deceased.















[21]
To my mind, had it been that PW2, PW3 and the deceased had gone to
attack the accused with the knife as he has alleged, the story would
have been different. I do not believe the accused's version of
events. Rather, I am of the view that the three young men were
unharmed and their so called peaceful mission in a bid to recover
their money had taken a turn for the worse. On the whole, I find the
evidence of PW2 and PW3 to be credible reliable and corroborative and
I accept it.















[22]
It is also worthy of note that even though the accused had denied
that he ever sold shoes to the deceased, his own daughter, who
testified as DW2, admitted that he had sold shoes to the deceased.
The said DW2 also confirmed that the accused used to run a sheeben at
his home and this is a fact that the accused had also denied. The
accused also denied having made threats to kill the deceased
notwithstanding the overwhelming evidence adduced by the prosecution
in this regard. In particular, I note the testimony of PW1 and how
she recounted a chilling account of the threats the accused had made
directly to her when he had said "gogo Ndlovu I am going to kill
your child." Regarding this issue, I must say that I believe PW1
and I find that she had no reason to fabricate such evidence.







[23]
Judging from the facts adduced before me, the accused did not make a
favourable impression on me as a witness of truth. I find that the
accused has told a number of untruths, coupled with glaring
inconsistencies in his testimony and these can be seen as evidence of
his guilt. Although the Court is mindful of the fact that people may
lie to bolster up a just cause, out of shame, or out of a wish to
conceal disgraceful behaviour, as per the directions in the English
case of
R
v.
Lucas
1981 QB 720, 73 Cr. App. R. 159 CA,
I
find that the lies told by the accused in this case were deliberate
and were not told for an innocent reason, but rather to evade
justice. I so hold.











[24]
I must also mention that I am in agreement with the submission of
Crown counsel that in some instances, the untruthfulness of the
accused is a factor which a Court can properly take into account as
strengthening the inference of guilt.



See
the case of
Ndlovu
v The State 2000 (2) [BLR] 158
which
I find very instructive on this issue. It was held by
Korsah
JA
that:



"Lies
told by an accused in order to distance himself from an offence may,
in such circumstances, be taken as a male-weight to strengthen the
case for the prosecution."







[25]
It has been submitted that a substantial amount of the Crown's
evidence was never challenged by defence counsel during
cross-examination of the prosecution witnesses and that the accused
sought to challenge such pieces of evidence when he testified. These
include the fact that the accused made threats to PW1 that he was
going to kill the deceased; that he told PW2 and PW3 to come with the
deceased to collect their money; the fact that he owed them; the fact
that the three young men arrived at his house after 1900 hours and
the fact that he was arrested by PW4 on the same night after
assaulting the deceased. These were never challenged by the defence
and it was never put to PW2 and PW3 that they had gone to the
accused's homestead at midnight.











[26]
At this stage, I find it necessary to say something on the subject of
counsel's duty to put the defence case to prosecution witnesses. In
S
v P 1974 (1) SA (Rhodesia, A.D.) Macdonald JP
said
at page 582:



"It
would be difficult to over-emphasise the importance of putting the
defence case to prosecution witnesses and it is certainly not a
reason for not doing so that the answer will almost certainly be a
denial.........So important is the duty



to
put the defence case that, practitioners in doubt as to the correct
course to follow, should err on the side of safety and either put the
defence case, or seek guidance from the court."











[27]
In
Rex
v Dominic Mngomezulu and others Criminal Case No. 94/1900,
Hannah CJ
made
the following pronouncement at page 17 therein of the said
judgment:















" failure
by counsel to cross-examine on important aspects of a prosecution
witness's testimony may place the defence at risk of adverse comments
being made and adverse inference being drawn. If he does not
challenge a particular item of evidence, then an inference may be
made that at the time of cross-examination his instructions were that
the unchallenged item was not disputed by the accused. And if the
accused subsequently goes into the witness box and denies the
evidence in question the court may infer that he has changed his
story in the intervening period of time. It is important that counsel
should put the defence case accurately. If he does not, and the
accused subsequently gives evidence at variance with what was put,
the Court may again infer that there has been a change in the
accused's story."











[28]
In this present case, when the accused gave evidence, it became
apparent that in several respects he was taking issue with
prosecution evidence which had not been challenged. For instance, on
the issue of his arrest, what the accused told the Court was that it
was the next morning that he had made attempts to surrender himself
at Matsapha police station. However, this was never put to PW4 at the
time he had testified to the effect that it was on the same night of
the 20
th
March,
2009 that he had arrested the accused at his home. I must state
emphatically that I do not accept the evidence of the accused in this
regard and I would discountenance it as nothing but an afterthought
to exculpate him from the charge.















[29]
I shall now turn to deal with the legal question which calls for
determination in this case, namely:







(a)
whether or not the Crown has proved beyond reasonable doubt that the
accused, in killing the deceased, did so unlawfully and
intentionally.















[30]
In determining the above question posed, I have given much thought
and weight to the following pieces of evidence: the fact that the
accused assaulted the deceased with a knob-kerrie several times on
the head, the part of the body assaulted, the type of weapon used,
the force applied, the number of times which the deceased was
assaulted, the accused's utterances on previous occasions that he was
going to kill the deceased and the accused person's callous and
outright refusal to allow PW2 and PW3 to assist the deceased as he
laid wounded on the ground. On the whole, I find that there was no
legal justification for the accused's vicious attack on the deceased.
I therefore find the said killing unlawful and I so hold.







[31]
Having found the killing unlawful as aforesaid, I would now proceed
to deal with the vexed question of whether or not it was intentional.
In
Thandi
Tiki Sihlongonyane v R
Appeal
Case No. 40/97. Tebbutt JA
opined
as follows: " Dolus can, of course, take two forms:



(i) dolus
directus
where
the accused directs his will to
causing the death of the deceased.
He means to kill.
There is in such event an actual intention to
kill; and











(ii) dolus
eventualis where the accused foresees the
possibility of his act
resulting in death, yet he persists in
it reckless whether death
ensues or not."















[32]
On a proper analysis of all the evidence and the submissions before
me, I find that the accused's conduct, as described above, has
established beyond reasonable doubt that the accused had evinced an
intention to kill the deceased. As it was succinctly stated by His
Lordship
Troughton
ACJ
in
the case of
R.
v.
Jabulane
Philemon Mngomezulu 1970 -1976 SLR
6
at
7
(HC),
"the
intention of an accused person is to be ascertained from his acts and
conduct. If a man without legal excuse uses a deadly weapon on
another resulting in his death, the inference is that he intended to
kill the deceased."











[33]
In this instant case, I find that by striking the deceased with the
knob-kerrie five times on the head, which was in the circumstances
unlawful, the accused clearly intended to kill the deceased.
Furthermore, the fact that the said assault on the deceased was
vicious and cold blooded can be gleaned from Exhibit A which reflects
that the "left temporal bone, left parietal bone and occipital
bone" in the skull were all fractured.











[34]
To
my mind, what is worse and totally revolting, is the callousness the
accused demonstrated after he had struck the deceased. Even though he
had seen that the deceased had been injured, he refused to allow PW2
and PW3 to assist the deceased as he laid motionless on the ground.
Instead the accused heartlessly stood guard over the deceased whilst
still brandishing his weapon. He certainly showed no remorse
whatsoever at the time, and I would add that the same obtained even
when he appeared before this Court. The accused never apologised for
his actions.















[35]
In the light of all the foregoing, the conclusion, which I regard as
ineluctable is that the assault by the accused on the deceased was
intentional in the sense of
dolus
directus.
I
so hold and I find that the Crown has discharged the burden of
proving the guilt of the accused beyond reasonable doubt. I therefore
find the accused guilty of murder as charged and I hereby convict him
accordingly.







[36]
It must be mentioned that I have also come to the considered
conclusion that the Crown has satisfied the degree of proof required
in criminal law as enunciated by Lord Denning in
Miller
v Minister of Pensions 1947 ALL ER
at
372
where
the learned Judge stated as follows:















"It
need not reach certainty, but it must carry a high degree of
probability. Proof beyond a reasonable doubt does not mean proof
beyond a shadow of doubt. The law would fail to protect the community
if it admitted fanciful possibilities to deflect the course of
justice. If the evidence is so strong against a man as to leave only
a remote possibility in his favour, which can be dismissed with the
sentence "of course it's possible but not in the least
probable", the case is proved beyond reasonable doubt, but
nothing short of that will suffice."



[37]
At this stage, I deem it necessary to advert my mind to the
provisions of
Section
295 (1) of the Criminal Procedure and Evidence Act
67/1938
which
provides as follows:















"If
a court convicts a person of murder it shall state whether in its
opinion there are any extenuating circumstances and if it is of the
opinion that there are such circumstances, it may specify them;
Provided that any failure to comply with the requirements of this
section shall not affect the validity of the verdict or any sentence
imposed as a result thereof."















Sub-section
(2)
thereof
provides "that in deciding whether or not there are any
extenuating circumstances the court shall take into consideration the
standards of behaviour of an ordinary person of the class of the
community to which the convicted person belongs (Amended
P.
47/1959.)"







[38]
To
this end, His Lordship
Ramodibedi
CJ
pronounced
in
Bhekumusa
Mapholoba Mamba v Rex, Criminal Appeal No. 17/2010
that,
a locus classicus exposition of extenuating circumstances was, in his
view, made by
Holmes
JA
in
S
v Letsolo 1970 (3) SA 476 (AD) at 476 G-H
in
the following terms :-











"Extenuating
circumstances have more than once been defined by this Court as any
facts, bearing on the commission of the crime, which reduce the moral
blameworthiness of the accused, as distinct from his legal
culpability. In this regard a trial Court has to consider -




  1. Whether
    there are any facts which might be relevant to extenuating, such as
    drug abuse, immaturity, intoxication, provocation, (the list is not
    exhaustive);




Whether
such facts, in their cumulative effect, probably had a bearing on the
accused's state of mind in doing what he did;











(c)
Whether such bearing was sufficiently appreciable to abate the moral
blameworthiness of the accused in doing what he did;











In
deciding (c) the trial court exercises a moral judgment. If the
answer is yes, it expresses its opinion that there are extenuating
circumstances."











[39]
Another case which I have also found instructive is the Swaziland
Court of Appeal case of
Daniel
M. Dlamini
v
Rex
Criminal Appeal No. 11/98
where
it was held that "no onus rests on an accused person who is
convicted of murder to establish extenuating circumstances." It
would appear therefore, that, in reaching a conclusion as to whether
or not extenuating circumstances are present, the duty falls upon the
Court.







[40]
In considering the above in this particular case, I would take into
account two salient portions in the testimony of the accused. He had
told the Court that it was when the deceased had hit his door and
then insulted him, using traditional insults, that he had picked up
the knob-kerrie from behind the door before going outside.







[41]
It is also in evidence that the accused had showed his displeasure
regarding the fact that the deceased (together with PW2 and PW3) had
gone to harass his daughters in their house at night. It is also
worthy of note that during cross-examination of PW2 and PW3, defence
counsel had put it to them that they had demonstrated lack of
judgment by going to the homestead of the accused at night against
Swazi custom.











[42]
In my considered judgment, such facts, in their cumulative effect,
probably had a bearing on the accused's state of mind thus provoking
him into doing what he did. I am therefore of the opinion that there
are extenuating circumstances in this case and I so return this
opinion as required by
Section
295 (1) of Criminal Procedure and Evidence Act, 1938,
supra
as amended.



















[43]
In the result, the verdict of this Court is as follows:







Guilty
of murder with extenuating circumstances.”



















DELIVERED
IN OPEN COURT IN MBABANE ON THIS....3rd....DAY OF JUNE, 2011







M.M.
SEY(MRS)



JUDGE
OF THE HIGH COURT